This article has been written by Ms. Akanksha Choudhary, a 3rd year BA.LLB (Hons.) Student from CMR University, School of Legal Studies, Bengaluru.

INTRODUCTION

Trespassing is defined as “being present on someone else’s property without his consent” by the typical person. Throughout the beginning of time, people have yearned to enjoy their property without being hampered by any outside force. Each individual has the right to enjoy his property as much as possible without any intrusion, and anyone who does anything to interfere with that right commits the crime of trespass. So, the purpose of making trespass illegal is to give the property owner the ability to exercise and maintain control over his land. Trespass is frequently seen as a civil wrong that is subject to a fine for damages; but, when criminal intent is present, it becomes a crime.

Criminal Trespass

Everyone has the right to utilize their property without interference that’s why trespassing is prohibited. Criminal trespass occurs when a trespass is performed with the intent to conduct a crime, even if it might occasionally be a civil infraction for which the perpetrator may seek restitution. The Indian Penal Code may allow you to seek compensation if a criminal act, such as theft or violence, limits your ability to enjoy your property, whether it be moveable or immovable (IPC). In the event that X unlawfully entered Y’s home and took his grandfather’s antique watch, he would be held accountable for both theft and criminal trespass. In certain situations, criminal trespass may even become more serious. Similar circumstances might result in greater punishment for X if he broke into Y’s property at night or with the intention of attacking him. The Indian Penal Code (IPC) separates criminal trespass into 22 parts, starting with Section 441 and concluding with Section 462, notwithstanding the expansive definition of criminal liability. According to Section 441 of IPC:

“Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass”.

Ingredients of Criminal Trespass

Criminal trespass involves both unlawful entry onto another person’s property and unlawful loitering on someone else’s property with the aim to cause harm or annoyance. Hence, the following prerequisites must exist in order to conduct criminal trespass:

• ‘Whoever enters’: The accused must physically enter the property of another person in order to commit the offense of criminal trespass. If the attacker does not physically enter the victim’s private property with a tool, there is no trespass. In State of Calcutta vs. Abdul Sukar, the court held that a servant’s constructive entrance did not constitute entry under this Section since there was possession in fact even though there was no legal possession. For instance, if X often throws trash outside Y’s house, he may be the source of annoyance, but he hasn’t broken the law because X hasn’t entered Y’s property.

Property: Both mobile and immovable property are referred to as property in this Section. The same legal repercussions would apply if someone broke into their car or another piece of movable property as they would if they broke into their house. In Dhannonjoy vs. Provat Chandra Biswas, the accused assaulted the possessor before driving away from his boat. The court found that even though it was movable property, it amounted to criminal trespass. Therefore, the term “property” does not include incorporeal property or immovable objects like patent rights.

Possession of another: The owner of the property ought to be the victim, not the intruder. It is not necessary to be the landowner in order to be charged with criminal trespass; merely possessing the property is sufficient. Therefore, it is not necessary for the owner or the person in possession to be present at the time of the trespass; as long as the trespasser enters the property with the intent to annoy, it is still trespass. Even if the girl wasn’t home when the letters were delivered, it would be illegal to write love letters and send them to a girl’s house without her choice.

Intention: It would not be deemed criminal trespass if the accused parties’ intention was not to annoy, offend, or harm the property’s owners or occupants. As purpose is at the heart of this crime, there is no criminal trespass if there isn’t a compelling motive to commit the act. The basis for determining whether an incursion was made with the intent to cause annoyance or any kind of damage is the objective of the trespasser at the time of entry. 

In Punjab National Bank Ltd vs. All India Punjab National Bank Employees’ Federation, the court determined that the strikers’ entry into the bank did not constitute criminal trespass because their only goal in doing so was to put pressure on management to grant their demands; there was no intention to offend, harm, or annoy any of the superior officers. Nonetheless, it would be deemed criminal trespass if the strikers barged into the top staff members’ private cubicles or offices with the intention of upsetting them. As stated in Ramjan Misrty vs. Emperor, it must also be shown that the accused’s goal was sincere and not justifiable. It must also be demonstrated that there was an intent to commit an offense, or to intimidate, insult, or annoy any such person, for a crime of criminal trespass to occur. It is not sufficient to show that the person entering another’s property had awareness that his entry might create aggravation.

Punishment of Criminal Trespass

Punishment is basically to give a person a sense of satisfaction and security so that he can fully enjoy his private property, criminal trespass has been added as a criminal offense under section 441 of the Indian Penal Code, 1860. Criminal trespass is punishable by up to three months in prison, a fine of up to 500 rupees, or both, according to Section 447 of the Indian Penal Code.

Criminal vs. Civil Trespass

The difference between civil and criminal trespass is rather minimal. A person just needs to be present on someone else’s property “illegally” in order to be charged with civil trespass. One can prevent such an offense by paying the fine. A person is considered to have committed criminal trespass when they enter someone else’s property without permission and do so with the aim to break the law, intimidate, embarrass, or annoy the owner of the property. There are different degrees of criminal trespass, and the punishments might include jail time or a fine.

Aggravated forms of Criminal Trespass

The specifics, seriousness, and consequences of criminal trespass might differ depending on the crime. Depending on the circumstance, the trespasser’s motive, and the type of property involved, criminal trespass may be deemed aggravated. These cases fall under specific Sections of the Indian Criminal Code, which outline specific penalties.

• House Trespass (Sec. 442) (Sec- 442): Trespassing onto the property where these people live and keep their things is therefore regarded as an aggravating kind of criminal trespass since the state is required to give its citizens a safe environment to live in. According to Section 448 of the Indian Penal Code, the offender faces a maximum prison sentence of one year, a fine of up to INR 1,000, or both if they are found guilty of house trespassing.

• Lurking House (Sec- 443): An enhanced variety of a house intrusion is a lurking one. Lingering home-trespass, as defined by Section 443 of the IPC, is the act of committing a house trespass while taking steps to hide it from the person who has the authority to evict the trespasser from the building or dwelling that is the subject of the trespass. Yet, it must be clear that the alleged trespasser made a conscious effort to hide his presence. Under section 453 of the Indian Penal Code, 1860, a person found guilty of lurking house-trespass faces a maximum sentence of two years in prison as well as a fine.

The court in Lokesh Kumar v. State (NCT of Delhi) and Others rejected the complainant’s claim that the alleged lurking house trespasser was observed jumping from the balcony and running away while the balcony door was open despite having been closed by the complainant himself. The court held that the prosecution in such cases must not only establish house-trespass but also prove that the accused took precautions to conceal such conduct. Since there was no evidence of measures intended to hide such a house intrusion, the court did not decide that lurking house trespass had occurred.

• House Trespass in Waiting at Night (Sec- 444): Lingering house trespass during the night is a more serious type. Under section 444 of the IPC, lurking house trespass is referred to as lurking house trespass by night after dusk and before dawn. It is vital to remember that night includes the hours between sunset and sunrise. House trespasses that are committed throughout the night are not considered lurking house trespasses. The severity of the penalties for trespassing on a residence at night while it’s unoccupied corresponds to the level of annoyance involved. The maximum sentence for nocturnal lurking house trespass is three years in prison, as well as a fine. As a result, under section 453, the maximum punishment for midnight lurking house trespass is one year longer than for basic lurking house trespass.

CONCLUSION

According to the IPC, criminal trespass is committed by anybody who enters any property that is in your control with the intent to do you harm or injury. This includes known individuals. Criminal trespass requires a deliberate intent to violate the law; mere knowledge does not qualify as criminal trespass. Also, the aggravation that occurred at the time the offense was done would affect the criminal trespass punishment. House-trespassing is a more serious crime than criminal trespassing, lurking house-trespassing and housebreaking are worse forms of house-trespassing, and night-time lurking and housebreaking carry the worst penalties.